August 29, 2003

American reformers may have little power over the legal profession compared to the Attorney General of a major Australian province, but they have a very similar message: public confidence in the legal system and the legal profession requires a legal disciplinary system that is effective and trusted. Their articles are well worth reading:

First, Time for a Whupping: Across the Country, Attorney Discipline Systems Disgrace the Profession, from Legal Times (August 18, 2003), by James C. Turner and Suzanne M. Mishkin, of the legal reform group HALT. Turner and Mishkin’s article concludes:

Remarkably, some opponents of reform seem to believe that by pushing ethics problems under the rug, they somehow protect the broader reputation of the profession. As David Jordan, chair of the New Hampshire Bar Association Public Protection Fund, admitted a few years ago, “[W]e don’t tell anyone about the fund. Half the board doesn’t want the public to know about the fund because it says that lawyers are crooks.”

But all who practice law have a shared interest in creating a discipline system that investigates promptly, deliberates openly, and weeds out unethical or incompetent attorneys. By addressing long-recognized failures, we can create a discipline system that engenders consumer trust and respect, rather than alienation and resentment. After three decades of neglect, can we do less?

Next, In law reform, consumers come first: If the public is to have confidence in our legal system, changes are needed, by Robert Hulls, Attorney-General of Victoria, Australia (in The Age, Aug. 30, 2003) (via Overlawyered.com,Aug. 29, 2003). Attorney-General Hulls writes in his op/ed piece:

As Attorney-General, I am interested in cost efficiencies in any new system, especially since improved efficiencies may lead to the freeing up of funds for access to justice initiatives such as the funding of legal aid. But the drivers of my reforms must be the needs of consumers and the maintenance of an accessible and robust justice system.

Victorians place considerable trust in their lawyers, and lawyers have a responsibility to ensure that trust is not abused. If that trust is abused it is essential that lawyers, like all professionals, are held accountable to the public.

This is why the new legal regulatory system has been carefully crafted to give Victorians confidence in a system that will be transparent, accountable, efficient, and address the alleged conflicts of interest.

Both Hulls and HALT want a disciplinary system that is no longer controlled by the profession. As we posted on Aug. 4, 2003, such reforms are expected to be adopted in the UK in the very near future.

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Brian Peterson’s Webloghas reported that a “W.Va. law firm stops taking cases for malpractice” as a direct result of new caps on non-economic damages (pointing to an article in The Parkersburg News and Sentinel (by Evan Bevins, Aug. 25, 2003).

The firm in question notes that malpractice suits are expensive to bring, and “the new law makes it harder to get a ‘fair verdict’ for clients.” Further down in PN&S article is another explanation:

“The firm’s financial considerations played a part in the decision, [its spokesman] said, just as decreasing fees might cause a doctor to stop performing a certain procedure. ‘That does enter into it, just like any other decision,’ he said.”

The Editor of this blawg is on vacation, but his cousin skepticalEsq just stopped by and left the following Comment:

Let me see if I understand this: Just when “fair verdicts” will be especially hard and victims need devoted p/i lawyers more than ever to fight for every penny they deserve, firms are deciding to stop taking malpractice cases due to “financial considerations” like “decreasing fees.” Seems to me, the Trial Lawyers’ Association needs to do a little better spin control and pr training within its own ranks, before the public starts to think that 25% of the first half million dollars in non-economic damages is just too trifling an amount to attract a good p/i lawyer. We wouldn’t want Americans to get unduly cynical about their lawyers.

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August 28, 2003

The Insurance Defense Blog lists “Five Musts to put in Writing to a Client” (from Maryland Bar Journal Sept/Oct 2003, by Bar Counsel Melvin Hirshman, the text of which is not available online). EthicalEsq? Reminder: The documents can’t just be CYA’S, but must be TLC’S — Thorough Lawyering for the Client’s Sake” [See our posting from July 14 on improving fee and retainer agreements.]

August 25, 2003

My name is David and I’m a blawgoholic. It has ruined my social life and threatened my health.

Thank goodness, I’ve found Blogoholics Anonymous and reserved space in a total immersion, week-long retreat, starting right now. (Well, in a few minutes.) I have promised to stay at least twelve steps from my computer at all times through Labor Day. Should my alter ego, Jack Cliente, hack into my website, I have programmed this weblog to keep all postings to 12 words or less.

You’ll be expected to self-police in my absence (diligently, for a change). Maybe, I should check detod.com just one more time before shutting down. I mean, something really important might have . . . .

Clicking the “Public/Consumer Resources” button on bar association websites can quickly turn Pollyanna Advocate into skepticalEsq!. It is rare to find a bar group that lets the public know about viable alternatives to hiring a lawyer for solving legal problems.

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The defensively plaintive refrain I hear when raising this issue is “Gee, you don’t expect us to put ourselves out of business, do you?” No, I don’t. But, I do expect responsible “counsellors” and advisors to fulfill their professional and fiduciary duty by giving consumers objective information about the various ways to solve a legal problem.

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With that standard in mind, let’s look at some examples from cyberspace involving information on self-help resources. [My search could not be even close to exhaustive, so I hope visitors will let me know of examples, both the good and the bad.]

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Starting on a positive note, I invite bar association officials and webmasters to view the Santa Clara County (California) Bar Association website. When you click on Lawyer Referral/Public Resources, you get a drop-down menu that lets you access its Self-Help Center/Legal Consumer Resource Center. The introduction rightly claims uniqueness for the site, which offers over 130 links in several categories, including alternative dispute resolution, small claims and traffic court, and individual areas of law:

The Internet provides vast resources for self-help with legal matters. The Santa Clara County Bar Association is pleased to provide this unique Center for the public to assist you in more easily and efficiently helping yourself. This is a comprehensive gateway to on-line information about the law, legal procedure, and legal documents.

Though there are many simple legal matters, which you may be able to handle without the assistance of a lawyer, we strongly recommend that for the majority of legal maters an individual should seek the assistance of a lawyer; the law can be more complicated than it seems and court procedure more exacting than a non-lawyer can be expected to know. Even a consultation with a lawyer before deciding to represent yourself can be important to a successful resolution of your legal issue.

This open-minded view toward self-help options is far different than the silence or scare tactics found far more often on bar websites. E.g., the Ohio State Bar Association website offers a Consumer Resources LawFacts Pamphlet, “Attorneys.” There is no direct mention of self-help alternatives in the brochure. Instead, you’ll find this message:

Remember that when you have a legal problem, you should go to a lawyer. Be wary of advice and opinions from persons who are not lawyers. To consult someone who is not an attorney about a legal problem is always risky and often costly. Generally, no two legal problems are exactly alike.

More strikingly, the New York State Bar Association pamphlet “You and Your Lawyer“(which we gave our Judee Pamphleteering Award on August 9, 2003) contains the following section (emphasis added):

Why you should not seek to handle your own legal affairs

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A number of do-it-yourself “kits” are offered for sale from time to time. Kits are available for getting a divorce, declaring bankruptcy, or forming a business. It’s not illegal for you to use these for your own affairs; however, you risk paying the consequences. Kits may appear to save you money, but a minor detail, one that you might overlook but one that a lawyer is trained to notice, could result in a loss far greater than what you “save” by trying to be your own lawyer. After all, there’s an old saying, even for lawyers, that “he who represents himself has a fool for a client.”

The NYSBA pamphlet The Attorney’s Role in Buying or Selling A Houseuses a similar strategy. It starts with the question “Do I Need an Attorney?”, then lists in detail 10 transactions (from dealing with the broker, to arranging financing, to searching title, and conducting the closing) that are part of the process. It baldly asserts that an attorney “usually has more experience dealing with them than any other service providers for the transaction.” The pamphlet concludes with the statement: “An attorney’s help and guidance are essential from the time you decide to buy a house until the actual closing. [all-caps, bold blue print] That’s Why You Need an Attorney.”

A fairer approach to the same topic can be found in the online brochure What Should I Know Before I Buy a Housefrom the California State Bar. It explains many aspects of buying process and states “If you are not sure that you understand all of your rights and responsibilities, it is advisable to see an attorney who is experienced in the purchase of residential real estate. An attorney can help you with legal and tax questions that come up during the purchase of the home, and can assist you in reviewing all of the documents and reports that will be provided to you in the process of purchasing the home.”

Unfortunately, the Public Resources sections of many other bar association websites have information limited to Grievance Procedures, the group’s own Lawyer Referral system, and pro bono resources (for the indigent and other disadvantaged groups). That’s true from the Los Angeles County Bar Association,to the San Franciso Bar, to the Association of the Bar of the City of New York .

“Remember, if you have a legal problem, you should have legal representation. The Lawyer Referral and Information Service is designed to serve anyone who can afford the services of a lawyer. Persons who have a legal problem and cannot afford a lawyer should contact the Legal Aid office in their community.”

The consistent Message from bar associations to consumers: “If you can afford a lawyer you should hire one. Only the indigent cannot afford a lawyer.“

Bar associations who want to improve the information they are giving the public on alternatives to retaining a full-service lawyer, can find a good model at the Santa Clara County Bar Association site, highlighted above. They should also look at the ABA Consumer’s Guide to Legal Help on the Internet, which tells visitors: “You may decide that the legal matter is simple and that you want to try to handle it yourself. Or you may feel that you can’t afford to hire a lawyer to handle the entire matter, and that you’d like to do part of the work yourself. If this is your situation, see our “Self Help” page for more information.”

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Consumers visiting the excellent ABA Self-Help pagewill find plain-English, sensible advice for deciding whether they can represent themselves, finding assistance and materials such as forms and how-to guides, understanding the concept of “unbundling” (in a section captioned Hire a Lawyer to Do Part of the Work), and locating lawyers willing to perform discrete tasks for clients.

With positive examples from the relatively small SCCBA and the giant ABA, there really is no excuse for bar association websites to be so barren or hostile on the topic of self-help law, alternative dispute resolution, or unbundling of services. If lawyers and their associations are not willing to use websites to truly inform consumers about their options, they should at least delete all the pious statements about putting the client’s interests first, living up to the highest standards of ethics, and existing to serve the public.

Warning: We are a guild, here to serve the economic interests of our members. We’ll fight (’til your last dollar) to protect you from any legal adversary and to secure your legal rights. However, when it comes to your financial interests versus our own, we will put ours first whenever possible.

BenefitsBloggerB. Janell Grenier was nice enough to ask ethicalEsq? to comment on her posting of Aug. 21, and a Benchmark Alert, captioned Invasion of the Class Action Securities Lawyers. The Alert states that securities class action law firms, hoping to secure lucrative lead counsel status in pension class action suits, appear to by paying “lawyers who represent pensions hefty referral fees (which may or may not be disclosed to the fund-client).” Noting that this appears to raise serious ethical questions, the article continues (emphasis added):

Pension boards rely upon their lawyers to provide them with advice regarding (1) whether to participate in a securities class action lawsuit; (2) which law firm to retain to represent them and, finally, (3) what level of contingency fee the firm should be paid. Obviously, if fund counsel is receiving 10-18% of a class action law firm’s fee for the referral, he cannot be relied upon to provide the fund with impartial advice.

It is our understanding that many legal advisers to pensions and others receiving referral fees do not disclose the financial arrangements. While states may differ as to the ethical requirements applicable to lawyers within their boundaries, in our opinion those who serve as legal advisers to pension fiduciaries should observe the highest ethical standards.

There is indeed a great potential for harm to the pension fund client if referral fees are taken without fully informing the client of their existence and size — and, if the fees is out of proportion to the contribution of the referring attorneys to the class action firm. Whether in the form of a fixed fee (kickback) or a division of any future class action fees received, Model Rule 1.5 (e)seems applicable:

(e) A division of a fee between lawyers who are not in the same firm may be made only if:

(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;

(2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and

(3) the total fee is reasonable

Even if the requirement of a fully informed and consenting client is met, fulfilling the proportionality requirement in subsection (1) appears — to put it mildly — fairly difficult. I agree with the Benchmark article: pension fund attorneys need to abide by the “highest ethical standards,” and should therefore stop taking such referral fees. Pension funds owe it to their own beneficiaries to insist upon it, perhaps requiring a signed statement from their lawyers confirming that no referral fees will be taken. That’s the only way to avoid the appearance of giving or receiving “fee-duce-ary” [fee-induced] advice.

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August 23, 2003

The Boston Globe reported yesterday that Massachusetts Governor Mitt Romney had approved a bill allowing back payments owed to lawyers for the poor, but “cautioned the attorneys against launching another protest like the one that disrupted some Suffolk County courts earlier this week.” The Globe article (With a warning, governor approves $15.4m for lawyers, by Kathleen Burge, Aug. 22, 2003) stated:

If further disruption occurs, Romney would support ”taking disciplinary steps against these attorneys,” said Shawn Feddeman, Romney’s spokeswoman. ”It’s a constitutional right for indigent defendants to have this counsel.”

In response, one co-chair of the boycott-leading Suffolk Lawyers for Justice, asserted ”That right, in my opinion, encompasses the right to competent and zealous representation and lawyers who are paid fairly for their services.” Meanwhile, the other co-chair warned of future joint action:

”This is a victory,” said John Salsberg, cochairman of Suffolk Lawyers for Justice. ”It may appear to be a small victory, but I think it may have much bigger ramifications in the future. . . . Lawyers who represent poor people are willing to get together and take a stand.”

As had the Taunton Gazette on Aug. 21 (after interviewing local members of the boycott who discussed the likelihood of a strike in the Spring), the weekly Boston Phoenix indicatesthat similar group action is anticipated: “Expect another showdown this time next year, with tempers likely getting even hotter — unless the state gets serious about a long-term solution.” (Aug. 22-28, 2003 edition, A short strike yields a short-term fix, by David S. Bernstein)

It’s always easier to use coercive tactics the second time — especially if they were successful. Even without being verbalized, the threat of a repeat hangs over the head of the target. Without firm disciplinary action against them for their group refusal to take new cases, the bar advocates of Massachusetts will become chronic bullies.

As indepenent service providers, and not employees, each defense counsel has the absolute right to decide on his or her own whether to continue taking cases as assigned counsel for the indigent. But, they have no legal or ethical right to jointly refuse to take cases (or threaten to stop) in order to pressure the State for higher or quicker pay. Fair ends do not justify unfair means.

SUPPLEMENT (08-23-03): I just had a Comment from an anonymous Massachusetts lawyer, concerning my Aug. 17 posting entitled “Why the Boston “Bar Advocate” Boycott is Unlawful.” It underscores my concern that assigned counsel will be using the threat of another group boycott to achieve their fee goals. Below is the Comment and my Response:

Anonymous MassAtty: What rubbish . . . Who needs to strike? Let’s see what Romney, Locke AND CPCS does when July 1, 2004 comes around and 2500 “Bar Advocates” don’t appear because they have opted-out or otherwise refused to sign contracts with their respective County Advocate Programs. How long will it take the Governor and CPCS to burn out the “pro-bonos” and other hot-shots who step into the breach? Hmm… now there’s an interesting “ethical” concern. Just how many cases does one take, involuntarily or otherwise, before one stumbles into malpractice? Will the appointing Judge indemnify the inexperienced or “drafted” lawyer who gets hammered by a civil jury? That’s what happened to Worcester Lawyer Edward Healy back in 1985 after he unwittingly tried to help out the presiding justice William Luby in a case involving an arraignment and mental health evaluation on a fellow named Ronald Wagenmann. Seems Luby needed counsel to stand-in, nobody was around, Healy said O.K.,and oops! I Guess it wasn’t sufficient enough representation for Wagenmann and a federal jury in Springfield that awarded Wagenmann 1.7 miilion in damages, $500K of which was against Healy.

Editor:Dear Anonymous MassAtty, “Rubbish” is a nice, pithy legal argument, but not particularly persuasive. Wishing away the antitrust laws won’t make them go away. Same thing for your ethical responsibilities to the judicial system and to clients.

As in many other states, Massachusetts assigned counsel have been complaining about low fees for years and yet still taking the assignments. As individuals, you have the absolute right to get off the panel or refuse new cases. But, the vast majority continue to take them, whether out of magnanimity or financial need, I cannot say. That’s how the marketplace works — you each decide if the terms offered are adequate for you to sell your services to the buyer. No matter what is said about the current rate being below market rates, so far, it appears that the State’s proffered price IS adequate to attract the necessary providers. Bar advocates can lobby for a fairer fee level and quicker payments, but they may not use a group boycott to pressure the State, in order to alter market forces. Most members of the bar can be expected to understand the difference and to act accordingly.

Predicting calamities that are caused by your own joint, coercive action is neither ethically responsible nor helpful to your cause. It is, however, a good way to get attention from federal and state antitrust authorities — and, hopefully, from your Bar Counsel. I continue to hope that the State raises your fees, but I hope it can happen without further harm to the rule of law and the public’s respect for lawyers.

SUPPLEMENT #2 (08-23-03): Bill Day asks the important question whether it matters that the State has so much power as a buyer of services. The short answer is “no,” but follow this thread, or click on the Comment link, for an explanation, including quotes from the Supreme Court’s decision in the SCTLA (the D.C. assigned counsel case from 1990), which is covered in depth in this post. It is clear that competitors may not use a group boycott against a buyer of their services to increase fees. And, note that as large of a buyer as Massachusetts may be, it is far from a monopsonist in the State, when it comes to the entire market for legal services.

Update (Aug. 26, 2003): Thomas Workman, Taunton, MA, attorney, and webmaster of the Bristol County Bar Advocates’ website, Thomas Workman has a letter to the editor in the Boston Globe (8-26-03) on the Poor Pay for Court-Appointed Lawyers, in which he points out that the defense lawyer is the lowest-paid person in the room for the time while waiting to be heard in court. Tom asks why police and court clerks can unioinize and bargain for wages, but assigned counsel cannot. He correctly answers:

“Because of the relationship that has been structured between the state and court-appointed attorneys, the lawyers are considered independent professional contractors. Under antitrust laws, contractors cannot organize or join a union.”

Tom opines that the State has structured the system that way to keep the attorney fees low. The State is surely offering no more than it believes is necessary to obtain the desired amount of services. But, I doubt that there are many lawyers on the assigned counsel panel who would give up there private law practices in order to become fulltime employees of the State, working as public defenders. They can’t have it both ways. If they want to be in private practice, they have the responsibility to obey the antitrust laws.

In a separate email to your Editor, Tom Workman also writes:

You and I are philosophically in extreme disagreement on the issue of the application of antitrust law. Some of the precedents upon which you rely are ripe for overturning, and clearly (in my mind) do not serve the purpose and intent of the antitrust (anti-monopoly) laws. In the area of criminal defense services, the state of Massachusetts is the classical monomolist, with 90% of the market, no greater bully has ever existed than the state.

There is nothing extreme about the antitrust precedent that I cite. It is good antitrust law and is sure to remain so. The bar advocates just don’t want it applied to themselves. The target’s market share is not relevant when competitors use a naked boycott. However, as the Supreme Court noted in SCTLA, it does not seem likely that there is a market for “criminal defense services” that is separate from other lawyer services. The bar advocates prove that when they say they will start doing other legal work if their demands are not met.

The fact that the Government may be a big buyer or seller of services does not allow competitors to use a group boycott against it to achieve better prices, or any other better terms (such as credit). For example, businesses could not jointly agree to boycott the U.S. Postal Service in order to lower some or all of its rates. Nor could food caterers in and around a small town with a large prison agree to boycott the prison until it offers to pay more for their catering services. Each independent businessman must decide for himself or herself whether to accept the Government’s proffered price. If bar advocates believe they have strong public support, they should mount a lawful publicity and lobbying campaign.

Tom Workman and I have very different conclusions about the propriety of the boycott by Bar Advocates. However, I much appreciate his willingness to make and share his reasoned opinions with me. You can find more of our dialogue by using links on the ethicalEsq? “Discussion” Page.

A lot of law office staffers would love to send this month’s LexisOneShrinkRap column to a “special” lawyer they know. Entitled Avoiding Incivility in Litigation,it’s written by Joni Johnston, Psy.D. (August 2003). (via the ABA Litigation Section homepage)

Dr. Johnson notes that “Given a choice, most of us clearly would choose to do good.” However she asks:

So why don’t we? We often feel like the system stacks the odds against us. We can point the finger in a lot of different directions, the culture of law firms, the adversarial nature of our judicial system, the rewards of playing hardball, or the inflated expectations of clients. The incentives to act combatively, selfishly, or inefficiently can be compelling. Yet the results can be disastrous. Deals blow up. Cases don’t settle. Expenses escalate. Reputations suffer. Court dockets jam up. Commitments fall apart. Justice is delayed. And relationships are damaged.

The article describes some of the sources of lawyer stress and incivility, and offers some good tips on dealing with stress. Along the way, we read about lawyers who engage in “just” behavior — just becoming monsters when a trial is going on or a critical transaction is at stake. Dr. Johnson asserts (correctly) that “We can be civil when we’re aggressive, upset, angry and intimidating; we just don’t have to be rude. She concludes with the reminder:

The practice of law has been described as hockey while wearing suits. If it is, we can take heart from the best hockey players. They, like the best lawyers, treat other players fairly and with civility. And they win without resorting to cheap shots.

Yep, a lot of staffers would love to send this article to a lawyer they know. But, it’s hard for them to do it without jeopardizing their careers. So, why don’t we attorneys email it to ourselves, give it a lot of thought, and let our staff know we’ve read it and plan to put it into action. Today (well, on Monday). That would be special.

With “unbundling,” the lawyer and client agree that the lawyer will only perform specific, discrete tasks. While applauding the ability of unbundling to expand access to legal services, Carolyn is concerned over the ethical and malpractice ramifications of unbundling. For example, she asks Carolyn asks how far an attorney can go in a limited representation agreement, wondering whether, “For instance, under the existing standards of professional responsibility, could an attorney agree to appear for a client in court but have the client handle the case investigation and discovery?”

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Carolyn also cautions that “so long as the prospect of malpractice and bar complaints remain a threat, solo and small firm attorneys must proceed cautiously in entering into unbundled arrangements. She is certainly correct that (emphasis added):

[A]ttorneys should never agree to “unbundled” service on a “handshake.” Unbundled services is one arrangement that demands a clear retainer agreement laying out the scope of the attorney’s representation – otherwise an attorney who chooses to act as a “nice guy” and “look over a contract” or dispense some advice is destined to finish last.

Luckily, for attorneys who sincerely want to offer or consider unbundled services (as opposed to those who are looking for excuses to refuse such clients and stifle the growing movement), there are some good Sample Unbundling Retainer Agreementsreadily available online at the Unbundled Law Services website, which advises that “An essential part of an ‘unbundled’ legal services practice is a clear, detailed list (signed by the attorney + the client) which specifies which services the attorney will provide (and those s/he will not provide).” Included are links, for example, to:

a Model Composite Form – drafted by the University of Maryland School of Law Professor, Michael Millemann

a sample retainer agreement that has been used in Californiafamily court matters

As far as ethical issues are concerned, it is clear that a trend exists to clarify the attorney’s (already existing) right to enter into discrete-task relationships with willing and well-informed clients. For example:

1) the new ABA Model Rule 1.2(c) states that “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” and the related Comment on Agreements Limiting Scope of Representation explains (emphases added):

[6] The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client. . . . A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.

[7] Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a client’s objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1.

2) The Comment to Model Rule 1.1 (Competence) notes, regarding Thoroughness and Preparation, that “[5] . . . An agreement between the lawyer and the client regarding the scope of the representation may limit the matters for which the lawyer is responsible. See Rule 1.2(c).

3) The Comment to Model Rule 1.8on Limiting Liability and Settling Malpractice Claims clarifies that “[14] . . . . This paragraph does not, however, . . . prohibit an agreement in accordance with Rule 1.2 that defines the scope of the representation, although a definition of scope that makes the obligations of representation illusory will amount to an attempt to limit liability.

Your editor believes that the main barrier to unbundling over the centuries has been the profession’s desire to protect its financial position (and to craft ethical restrictions to support those interests), rather than valid issues of professional responsibility and client protection. Lawyers have dismissively said “We can’t do that,” as opposed to “Here’s what you need to consider before you and I consent to limiting my role.” Because performing discrete tasks for clients is still rather new, there are likely to be issues to be worked out relating to ethical responsibilities and malpractice exposure. But, none of these problems are insurmountable. Solo and small firm practitioners can and should be working to draft appropriate rules and sample forms that will assure a healthy environment for the growth of unbundling.

Before leaving this topic, howerver, I must disagree with one implication in the Aug. 22nd MyShingle posting. Carolyn states (emphasis added):

First, attorneys must try to discern whether clients seek unbundled services because they lack resources for full service or are freeloaderto complain to the bar (if not file a malpractice suit) if the lawyer does not live up to expectations.

Many Americans who can “afford” full service legal representation nonetheless want to uses who seek free advice and are simply too cheap to hire a lawyer. The freeloading clients will probably expect much more assistance in an unbundled arrangement than a lawyer is willing to provide – and are likely the unbundling option.

Many Americans who can “afford” full service legal representation nonetheless want to use the unbundling option. They not only do so in good faith, but they have the absolute right to seek and receive such limited engagements with their lawyers, no matter how wealthy they may or may not be. Lawyers are agents and fiduciaries, whose job is to serve the client’s wishes, unless to do so puts the client at unacceptable risk. Lawyers are not licensed leeches, permitted to suck as much blood from their clients as is available. Clients are not freeloaders if they say either “I want to participate as much as possible,” or “I want to leave a little money for me.”

Thanks (Aug 22, 2003) to Jerry Lawson at eLawyer Blog for quoting from and pointing his visitors to our posting Pro Bono is Not the Answer to the Access Problem.

August 21, 2003

Twice in a month, insurance defense lawyers have been upbraided and in the news for inserting nasty little footnotes in their briefs — footnotes accusing the trial judge of misconduct, rather than mere misunderstanding or misapplication of the law. We covered the first incident in our posting on July 27, concerning an Indiana attorney. Now, How Appealing has uncovered a similar situation (August 19, 2003), in a decisionby the U.S. Court of Appeals for the 10th Circuit:

“One final point. Baseless attacks on the integrity of the district court are inappropriate even in offhand conversation. Here, Travelers’ brief could easily be read as accusing the district court of misconduct, rather than simple legal error. Travelers’ counsel must exercise greater care in the future. The record contains nary a hint of impropriety by the trial judge.”

What’s up? I’m thinking some smart-aleck appellate lawyer wrote a snappy, irreverent footnote a few years ago, and it has been floating around the insurance defense bar ever since, passed on from one frustrated, smirking scribe to another. Maybe it’s even become ill-conceived, hyperbolic, anti-bench boilerplate.

I’m hoping that insurance-oriented blawggers (e.g., Doug Simpson at Unintended Consequences , Dave Stratton at Insurance Defense Blog, or George Wallace at Declarations and Exclusions) will find the source of the footnote. Even if we never know the original miscreant, let’s hope the offending words and notions have been deleted from word processing documents across the insurance defense bar.

Attacking a judge’s integrity in a footnote is both tacky and bad strategy. Luckily, you can’t get disbarred for what you’re thinking.

Update (8/22/03): Talk about quick service! George Wallace at Declarations & Exclusions has already responded to my question with dilgent and wise counsel. Here’s an excerpt from his reply, which I hope you’ll read in full:

I think David is too willing to detect conspiracy in this case. So far as I know or have been able to determine, there is no pre-fab footnote being shared among insurance counsel to be trotted out when one of us feels the urge to suggest that a lower court judge was not merely wrong, but crooked. And there is a simple reason for my belief that the thing Does Not Exist: Why circulate an all-occasion anti-judicial j’accuse when very few insurance attorneys would be foolish enough to use it? It is to be hoped that very few attorneys, period, regardless of their field of specialty, would succumb to that temptation.

Conspiracy theorist? Who, me?

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Twice in a month, insurance defense lawyers have been upbraided and in the news for inserting nasty little footnotes in their briefs — footnotes accusing the trial judge of misconduct, rather than mere misunderstanding or misapplication of the law. We covered the first incident in our posting on July 27, concerning an Indiana attorney. Now, How Appealing has uncovered a similar situation (August 19, 2003), in a decisionby the U.S. Court of Appeals for the 10th Circuit:

“One final point. Baseless attacks on the integrity of the district court are inappropriate even in offhand conversation. Here, Travelers’ brief could easily be read as accusing the district court of misconduct, rather than simple legal error. Travelers’ counsel must exercise greater care in the future. The record contains nary a hint of impropriety by the trial judge.”

What’s up? I’m thinking some smart-aleck appellate lawyer wrote a snappy, irreverent footnote a few years ago, and it has been floating around the insurance defense bar ever since, passed on from one frustrated, smirking scribe to another. Maybe it’s even become ill-conceived, hyperbolic, anti-bench boilerplate.

I’m hoping that insurance-oriented blawggers (e.g., Doug Simpson at Unintended Consequences , Dave Stratton at Insurance Defense Blog, or George Wallace at Declarations and Exclusions) will find the source of the footnote. Even if we never know the original miscreant, let’s hope the offending words and notions have been deleted from word processing documents across the insurance defense bar.

Attacking a judge’s integrity in a footnote is both tacky and bad strategy. Luckily, you can’t get disbarred for what you’re thinking.

Update (8/22/03): Talk about quick service! George Wallace at Declarations & Exclusions has already responded to my question with dilgent and wise counsel. Here’s an excerpt from his reply, which I hope you’ll read in full:

I think David is too willing to detect conspiracy in this case. So far as I know or have been able to determine, there is no pre-fab footnote being shared among insurance counsel to be trotted out when one of us feels the urge to suggest that a lower court judge was not merely wrong, but crooked. And there is a simple reason for my belief that the thing Does Not Exist: Why circulate an all-occasion anti-judicial j’accuse when very few insurance attorneys would be foolish enough to use it? It is to be hoped that very few attorneys, period, regardless of their field of specialty, would succumb to that temptation.

Conspiracy theorist? Who, me?

Comments Off on Does the Insurance Defense Section Have a Judicial Slander Subcommittee?

I’ve wanted to write in praise of the online, walk-in and mobile Self Service Centerof the Santa Clara County (California) Superior Court, since I discovered it a month ago. So, it was gratifying but no surprise to learn that the Court’s website has received First Place honors in this year’s Top Ten Court Website Awards from JusticeServed.com. [ thanks to Rory Perry, via the Legaline.com weblog, for the pointer on the Awards ]

The Self Service Center Office is designed to provide the public with a guide to navigate the court system in Santa Clara County. The Court also has a mobile Self-Service Center called the CourtMobile. It visits locations around Santa Clara County on a monthly schedule. The Self Service Center is designed to refer people to the resources they need to best deal with their court case. This may be information, a referral to other court resources or private agencies, or a suggestion that the assistance of an attorney is needed. For those who cannot afford an attorney, the staff at the Center can provide information about legal resources available. A staff attorney is present at the Center to help the public select the best way to deal with cases, but not to tell individuals what to do or advise them of their rights.

The Self Service Center Office and the CourtMobile both offer forms and form packets, computers with Internet access to the court’s Self Service website, a VCR for watching videotapes with legal information, help filling out legal forms, help learning about Court rules and processes, and referrals to other legal resources. In the left-hand navigation margin of the Small Claims Resources Page and of the Family Law Resources Page , users can quickly link to much more than the relevant court forms. There is information on alternatives to using litigation, on court fees, and on the substantive law. JusticeServed noted that the online assistance for filling out small claims court forms helped put the Santa Clara Court’s website “over the top.”

For an excellent example of online statewide self-help resources, see the California Courts Online Self-Help Center, which “will help you find assistance and information, work better with an attorney, and represent yourself in some legal matters.” The California court system has made a true commitment to increasing access and self-help options throughout the State’s legal services and judicial system. Bravo!

Self-help often works best when consumers can use lawyers for discrete tasks. The aptly-named website “Unbundled” Legal Services offers extensive information on the need for, ethics and mechanics of unbundling services, with relevant materials from many states, papers from conferences, sample retainer agreements, and much more for the court system or law firm interested in tapping into and encouraging the unbundling phenomenon.

Two Cents from Jack Cliente: If you missed our July 15th posting “Pro Bono Is Not the Answer to the Access Problem,” now would be a good time to check it out.

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